Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

Major premise: The speed limit where defendant was arrested is 45 MPH.

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.

1. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1 The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2 The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself.

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1 The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:

Major premise: Climate change is making things warmer

Minor premise(flawed): weather over a three-month period matters to climate change

Conclusion (faulty):Climate change is over or solved.

2.2 The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise: Some cities offer Segway tours of tourist areas.

Minor premise(flawed):I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3 Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

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It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.[1]

In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path. [2] His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.

The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.

The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.

In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphors are still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune later time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.

But, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.

For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time.

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[1] Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).

The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts. As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."

According to the report, there are four federal circuits with oral argument rates in the teens. The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument. The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument. According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015. In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases. And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?

Some of the decline can be attributed to the rise in cases appealed. In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%. It would be incredibly difficult for judges to hear argument in every case given the large number of appeals. Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal.

Still, oral argument has its purposes. In chapter 3 of Winning on Appeal, we set out some of these purposes. For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case. For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position. In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities. While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases. In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices) and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

In yesterday's oral arguments to the Supreme Court in Gill v. Whitford, the closely watched partisan gerrymandering case, Justice Breyer uncorked a doozy of a question. As he winds up, he promises to take "exactly 30 seconds." Then he, like, does not.

Like a lot of Breyer's long questions, this one had a pretty simple, IRAC-y structure and goal. First, he identifies a sticking point around which the Court would have to work to rule for one party or the other. Here, that's whether there are judicially manageable standards for evaluating claims of that partisan redistricting violates the Constitution. Second, he spins out his ideas about a solution (or, in other cases, his ideas about why the sticking point means the Court might be stuck). Here, that's his multi-step control > asymmetry > persistence > outlier > justification approach. And third, he asks the question. It's usually a 50+ word version of "so what do you think?"

I was impressed with the choices made by Wisconsin Solicitor General Misha Tseytlin -- an outstanding advocate -- in his answer. The question marked a shift in the direction of the argument from a conversation about one potential justiciability obstacle (standing) to another (political question). After the inevitable (laughter) that accompanies almost every Breyer mega-question, Tseytlin signaled, quite succinctly, to which of Justice Breyer's cues he would respond and how he had already touched on another earlier in the argument. And then he deliver a sharply composed, concrete multi-part answer:

He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:

Happy first Monday! Today kicks off the start of the Supreme Court's term. The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court. This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda. Check out thisNY Times article and thisWashington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season. By this point, you have an idea of how your Fantasy Football season is going. Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided. User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing. The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases." Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term. Good luck to all of the participants.

I'm thrilled to join the team at the Appellate Advocacy Blog. I am, literally, a professor of appellate advocacy; I teach and direct the Ilana Diamond Rovner Program in Appellate Advocacy at IIT Chicago-Kent College of Law. I will post about oral argument, psychology and persuasion, snappy legal writing, and other things that fascinate me about appellate courts and the stuff lawyers do to move them.

In an especially excellent episode of the always-great First Mondays podcast, Dan Epps and Ian Samuel interview Lisa Blatt of Arnold & Porter Kaye Scholer (the interview begins at about the 33:30 mark). The interview is full of useful insights about appellate advocacy, particularly oral argument preparation. And it helped me wrap my mind around Blatt's 33-2 record in argued SCOTUS cases; she is brilliant and self-aware, and she has crafted an advocacy style and preparation process that play to her strengths.

The coolest exchange in the interview is about a snippet in the Supreme Court's Guide for Counsel (pdf):

Know your client's business.... For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument [pdf link] in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.

The Guide nails it. In the interview, Blatt details how and why she acquired such expertise: she traveled to a U.S. Customs facility in Virginia to immerse herself in the nitty-gritty of border searches; she worked with agents as they took a gas tank apart; she learned reams of out-of-record information touching on the issues of drug trafficking and border searches; she does this to develop deep empathy with—and to better channel—her client. It's a great story.

And speaking of story: Blatt's command of the information lets her tell a full and convincing story to the Court. As the audio recording of the Flores-Montano oral argument makes clear, her well-packaged explanations of gas-tank searches and border crossings and "wonderful pieces of equipment" that let officers probe upholstery without leaving a mark do more than establish her credibility as a Knower of Many Obscure Things. They help vividly tell the legal story that matters in the case. The issue, after all, was whether customs officers must have reasonable suspicion to remove, disassemble, and search a vehicle's gas tank for contraband. In the all-things-considered Fourth Amendment stew, the details matter. The details linked to law persuade (and one detail made it into Justice Breyer's concurring opinion). And the whole package makes for a nifty object lesson in world-class advocacy. Listen if you can.

Chief Justice John Roberts made headlines last week. It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year. But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.” So, what was it? Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade. I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS. You can watch the video here. Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line: “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out. What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy. He reminds the students that, although they are “privileged,” they should not act like it. Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks. He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn. When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom. One of the judges, who was not in his robe, stopped to help them. But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him. He wasn’t on their panel, but I do believe that he spoke to the judges who were. A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

As a moot court coach, I teach my students to not use disfluencies like "um" or "uh" in their oral arguments. According to Prof. Barbara Gotthelf's article, A Lawyer's Guide to Um, my dislike of these disfluencies is not unique, but it might be wrong. After hearing a moot court judge critique an advocate for her use of "uh" and "um," Prof. Gotthelf "began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do." Having previously heard from a psycholinguist that "using uh and um was not only 'perfectly normal,' but also helpful in furthering effective communication," Prof. Gotthelf dug even further into the literature and found "a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication."

Prof. Gotthelf's response to the "um fixation" is expressed in the article, which was published by Legal Communication & Rhetoric: JALWD and is available here. I haven't had a chance to review it in depth, but I look forward to doing so soon (at least in advance of the below event).

In addition to publishing the article, Legal Communication & Rhetoric: JALWD is holding a live Facebook discussion of the article. Below is the announcement that I received regarding the event. I am sure that it will be, uh, a great discussion.

Gearing up for spring oral argument competitions? Join Legal Communication & Rhetoric: JALWD for a live Facebook chat-based discussion of Professor Barbara Gotthelf’s article, The Lawyer’s Guide to Um. This article about disfluencies like “um” and “uh” should be of particular interest to moot court advisors, practitioners, law students, and anyone who teaches oral argument. Should verbal fillers be vilified? Read the article and come weigh in!

The chat will take place on Thursday, April 6 at 3pm Eastern. Professor Jennifer Romig of Emery University School of Law will moderate. To participate in the discussion, join the LC&R Discussion Group here: https://www.facebook.com/groups/304595676586667/. You may join at any time in advance of the chat. When you join, you can check out the archives of our previous discussions.

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.

It is the "most wonderful time of year" for law professors--grading season! So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.

I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.

Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison. These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.

Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers. When they delivered public addresses to Congress people often had to strain to hear them.

With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers. Bill Clinton--another president-lawyer--was known as the great communicator. President Obama too is effective at pubic speaking. While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.

In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!

Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

#AppellateTwitter Threads of the Week:

BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started. Lots of great appellate advocates weighed in with some great tips.

While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice. Readers of this blog will surely want to look for that hashtag and tune in.

SCOTUS:

Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy. The case, Gloucester County School Board v. G.G., arises out of a school district policy mandating that students use the restroom matching their biological sex. A transgender student sued, with the support of the ACLU. The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor. More information available at the ACLU website and at SCOTUSBlog.

The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company. The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week. In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.

Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel. The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent." The AP reported.

Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues. Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals. The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.

Obama's Judicial Legacy:

Law.com ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.

Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments? Zoe Tillman tackled this touchy issue in a recent article on Law.com. The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions. Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.

Tillman notes:

Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.

While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument? With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity. According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.

With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option. It also doesn't hurt to do your homework and know the tenure of the court that you will appear before. Finally, ask yourself if it is truly relevant to use the profanity in the brief.

Apparently the Washington Redskins included a fair amount of profanity in their brief to the Fourth Circuit over the team's trademark. According to a post on the Business Law Basics blog,

In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued. Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here. Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone.

So I've appreciated some of the discussion on this blog about the importance of appellate oral argument and arguments for a more robust oral argument docket. But as a full-time appellate public defender, I have wondered if this analysis is different depending on the type of appeal and litigant. In that light, I thought I would break down the costs and benefits of oral argument and then see if they are different for different types of appeals and litigants. If they are, it may lead to more nuanced policy recommendations. Let's start with benefits.

Judges. As aptly noted elsewhere, there are a lot of tangible and intangible benefits for appellate judges stemming from oral argument. They (hopefully) are able to ask questions that allow them to craft their decisions better (even if not affecting the disposition). It allows them time to sort through potential ramifications of decisions that might be lost without discussion at oral argument. They may be able to hold parties accountable in different ways (i.e. verbally embarrassing a prosecutor for improper argument or causing a lawyer discomfort for procedural missteps). Oral argument may be the only time some appellate judges sit together in a room, so it may foster collegiality. And it is an opportunity for extremely isolated judges to interact with lawyers and an opportunity to act "judgey." So from the point of view of judges, there are many benefits, regardless of the type of case or litigant.

Lawyers. Do lawyers (not their clients) benefit from oral argument? Retained counsel (or even appointed counsel who bill by the hour) would seem to benefit financially from oral argument. These lawyers would get to bill for the preparation, travel, and argument itself, which would seem to be beneficial for most lawyers who value billable hours. For public defenders like me, there is no financial benefit to oral argument. I would get exactly the same pay if I had two oral arguments a year and if I had twenty. There are intangible benefits for lawyers too. Practice at oral argument can help lawyers get better at their craft (both brief-writing and subsequent oral arguments) and enhance their professional reputation (if they are competent anyway). And for full-time appellate lawyers, it is also an opportunity to interact with judges and act like lawyers. So from the point of view of lawyers, there are at least some intangible benefits for all appellate lawyers, but the direct financial benefits only attach to lawyers who are able to bill for the oral argument time.

Media/public. The media and public benefit from oral argument because it is the only time that the "outside world" gets to see the appellate process at work. Without oral argument, appellate litigation would be a largely faceless and mysterious process. The intermediate appellate court in which I practice (the Kansas Court of Appeals) travels around the state, conducting oral argument in community colleges, high schools, and local courthouses. Part of the benefit of these dockets is that they allow local students and the public the opportunity to attend an appellate case and see a little more of how appeals works. Every opportunity to enhance confidence in the judiciary is beneficial, regardless of the case or litigant. I don't know if oral argument actually benefits the media. It sometimes gives them a story to report, which I guess is beneficial (although, except for Nina Totenburg, I rarely find reporters that do a good job of really reporting on the essence of oral arguments). Certainly for high profile cases, being able to report on the oral argument would enhance the completeness of the reporting about the case.

Clients. Do clients benefit from oral argument? Systemically, this is probably the most important question and it, in some part, turns on the related perennial question, does oral argument matter? I love hearing different judges answer this question, ranging from an unequivocal "no" to an ambiguous "often." I think it is important to be precise in this question, though. The question shouldn't be "does oral argument matter?" or "does oral argument ever change the opinion?" It should be "does oral argument ever change the disposition of a case?" That is the most pressing issue for most clients: "Do I win or not?"

Notwithdstanding many judges' response to the question, I am pretty skeptical that oral argument changes the disposition in any significant number of cases. Why do I think that? How many legal malpractice or ineffective assistance of appellate counsel cases do you know of that turn on poor oral argument or even missing oral argument? About nine months ago, Kendall blogged about a Seventh Circuit case where a lawyer missed oral argument, apparently lied about it, and was chastised by the court. But if there was a reasonable probablity that oral argument mattered to the outcome of the case, why did the appellate court proceed to decide the case (as opposed to appointing new counsel and resetting the oral argument after enough time to prepare)? And would that client have been able to sustain an ineffective assistance of appellate counsel claim? He would have been able to show deficient performance; but I can't imagine how any similarly situated client would be able to show a reasonable probablity that the outcome would be different. I did a cursory review and could not find any cases finding ineffective asssistance of appellate counsel or legal malpractice (leading to damages) based on poor or missing appellate oral argument. Maybe some readers can comment if they are aware of any such cases.

Admittedly, this is an nuance that can vary depending on the client. Some institutional clients are not just worried about winning a particular case. Actually, the particular case may be of very little interest. But the law that evolves from the case may be very important. For those litigants, oral argument that leads to a refined legal decision may be quite beneficial. But most of my indigent clients don't really care about the evolving state of the law--they only care about whether or not their appeal will be successful. I'm not an issue advocate--I'm a client advocate.

Finally, there may be some intangible benefits for clients from oral argument. Even if it doesn't matter, it can make a client feel like he or she has had a "day in court" in a way that summary disposition probably does not. So, from the point of view of clients, aside from the intangible, whether clients particularly benefit from oral argument can depend on the type of litigant. Institutional litigants are probably more likely to receive a benefit than a case-specific litigant, for whom there is no reasonable possibility of a different outcome.

There may be other actors/institutions that stand to benefit from oral argument. But when considering the benefits, it seems that institutional litigants (and the lawyers that represent them billing by the hour), likely benefit much more than case-specific litigants and litigants that are primarily interested in the disposition of the case (rather than the development of the law). The judiciary and the public benefit from oral argument in both types of cases about equally.

Yesterday the 7th Circuit heard argument in Baskin v. Bogan, a case involving Indiana’s same-sex marriage ban. These arguments provide some noteworthy lessons in decorum. Appellant’s counsel began his argument by articulating a precise roadmap in simple, comprehensible terms. He was barely able to finish the first sentence of his first point, however, before being interrupted by one of the judges. Certainly interruptions are to be expected during oral arguments. This interruption, however, initiated a parade of horribles so grand that it left appellant looking like a monster. Throughout the argument, appellant’s counsel struggled to finish a single response before getting pounced with additional questions. When he attempted to advance his own argument in response to a question, he was immediately admonished to answer the question. At one point, another judge even explicitly said the court had no intention of allowing him to advance his own argument. Curiously, the court was not interested in the rich logos arguments appellant was attempting to advance. The judges wanted to know about the pathos arguments like the psychological impact on the children of same-sex couples and the various sociological, anthropological, and psychological literature available on the issue.

Appellant’s counsel professionally withstood the barrage of questions, although his frustration at times was evident in his voice. Toward the end of the argument, though, he became much more adamant in his disagreement with the court’s hypotheticals. His frustration showed both in his word choice and tone of voice. By comparison, both attorneys for the appellee came across much more composed. Granted, the court appeared to favor that side, so their argument was more readily received. The moral of the story is that attorneys should be prepared to frame logos arguments in pathos terms when the logical argument leads to a necessary result the court is reluctant to adopt.

Last week I posted about Savannah High School’s moot court reenactment of the Brown v. Board case. After participating in that event as a judge, I became curious about whether other high schools participated in appellate advocacy training. Of course, high school debate and mock trial are pretty common, but I had not yet seen any high school programs that focused on appellate advocacy.

In my research, I came to discover that American University Washington College of Law hosts an annual high school moot court competition. In preparation for competition, high school students study a problem comprised of judicial opinions, the party briefs, case law, and articles. Over the course of two days in the Spring, students present oral arguments on the issues presented by the moot court problem. The competition is open to all students, even those who are home schooled, and there is no requirement of prior experience with moot court or mock trial.

This type of program is positioned to impart a number of skills upon the students. Aside from the obvious ones like poise and public speaking, the studying of cases and defending a position through oral expository argument engages the brain in sophisticated problem-solving thought processes. Furthermore, asking young students to contemplate social justice issues and policy concerns in the context of legal precedent creates opportunities to ignite passion for the law and respect for its power.

I know many attorneys and academics seek opportunities to give back to their communities. Partnering with a high school to train students for appellate advocacy is an excellent way to give back by passing along attorney-specific knowledge to a younger generation.

I was recently asked to participate as a judge in a high school “moot trial” competition amongst three of our local high schools. I was intrigued by the notion of a high school “moot trial,” so I of course began asking questions about the event.

It turns out the students had been studying Brown v. Board of Education, and our local Board of Education wanted to host a capstone event to celebrate that study. What they really wanted was to host a debate on the issues in Brown, and I think they really meant moot court, not moot trial. While it was a good idea, the implementation became problematic as the organizers, who were not lawyers, could not understand the full vision or magnitude of the task assigned to the students. After some conversation with me and other professors, however, the vision narrowed to a more manageable scope for the students. In the end, the students basically reconstructed the oral arguments from Brown and delivered them in a moot court style.

I have to admit, I was skeptical going in about the ability of the students to grasp the issues without having had any formal guidance or legal training. The students, however, were nothing short of amazing. Don’t get me wrong—they aren’t ready to argue at the Supreme Court, but these students showed great potential as blossoming appellate advocates. They were poised, confident, thoughtful, and prepared. Until hearing them, I would have thought it unproductive to use Supreme Court precedent in this fashion at the high school level. Surely high schoolers are not open to learning about important historical developments in our law through the reading of the actual cases and briefs, right? Now, though, I see a number of opportunities for awakening social justice issues by engaging in brief studies of major Supreme Court decisions, and I think the context of the cases and briefs is exactly what the students need to stimulate a desire to learn and understand the issues of the day.

In a pair of posts last fall (here and here), I discussed examining the issue with my Advanced Appellate Advocacy class. These cases present a question of when law enforcement may search a cellphone seized at the time of arrest without seeking a warrant. I noted then that one way to conceptualize the debate is to attempt to categorize the cellphone as either an "item associated with the arrestee" (which may be freely searched) or merely an "item within the arrestee's control" (which may be searched only with some justification). The government in these cases, particularly Wurie, seemed to employ a bright-line classification argument. That is, the government proposed that a cellphone in the possession of an arrestee should be classified as an "item immediately associated with the arrestee," similar to a wallet or pager, and, therefore, subject to search without limitation. The litigation history at that time suggested the government pushed hard for this classification with very little attention devoted to a fallback or alternative argument. This was in contrast to the defense approach, again, particularaly in Wurie's appellate briefing, of providing alternative arguments for rejecting cellphone searches.

The recap at SCOTUSblog suggests that the Justices did not seem inclined to credit either party's categorical classification argument. Instead, they seemed to be searching for a logical way to draw a line between a permissible and impermissible search. As Howe explains:

Given the lack of support for either bright-line rule, it comes as no surprise that the Justices spent a good chunk of the two hours today mulling over a possible middle ground. But here too there wasn’t much in the way of consensus, as the Court struggled to find a compromise that would genuinely protect privacy.

While the pull of a strict categorical approach is strong, (it was especially strong for my students as new advocates), judges concerned with practical application and balancing the interests often seek out some middle ground. This is even more true in areas of the law concerned with balancing interests, such as the Fourth Amendment's reasonable search arena. Ultimately, the Court in Riley and Wurie will have to find that consensus position, even if it did not find it among the advocates' arguments yesterday.

Appellate advocates, and attorneys in general, need to be mindful that while it is important to know the jargon and "shop speak" relative to your client's industry, it might not be apropos to utilize this jargon in written and oral advocacy before the court. If jargon must be used, the attorney should define key terms and generally educate the judge about them.

The 7th Circuit Court in Consolidated Coal Co. v. Director, OWCP reminded counsel of this issue in its 2013 decision when it stated "we take this opportunity to remind lawyers that federal judges are generalists who are not necessarily familiar with the industry-specific jargon that lards the briefs in this case (732 F.3d 723). The judge went on to explain that lawyers should not assume they are knowledgeable about every area of law. Using phrases like "working at the tipple", "drove a gob truck", and "on the dragline" only serve to confuse the bench and make the issue(s) convoluted.

How many of you readers know what these terms mean? Unless you work in the coal industry you probably do not. The judge doesn't work in the coal industry either. Remember that you are the expert and you are expected to know the area of law better than the judge. The best advocate is usually the one who not only knows the law and the relevant industry but is also the best at explaining it in such a way that the adjudicator (be it the judge or jury) can understand.

Hat tip to attorney and appellate advocate Ryan Gilligan for sharing this case at a Black Lung CLE presentation today.

As readers have probably already determined, I have a particular interest in orality and oral argument. Two recent items caught my attention and seemed worth sharing. First, Listen Like a Lawyer, an excellent blog about a important skill that receives far too little attention, had a post Oral Argument as an Improvised Conversation. It takes the common bromide that advocates should think of oral argument as a conversation with the bench. That leads the author to two inquiries. First, "how can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client?" This is worth exploring further. Second, if we accept that oral argument is a conversation, albeit one with skewed power dynamics, are there lessons oral advocates can learn from modern sales practices? The blog post and the monograph it examines certainly think so.